State v. Catchings ( 2017 )


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    STATE OF CONNECTICUT v.
    MARCELLUS CATCHINGS
    (AC 36006)
    Beach, Sheldon and Lavery, Js.*
    Argued September 19, 2016—officially released February 7, 2017
    (Appeal from Superior Court, judicial district of
    Stamford-Norwalk, White, J.)
    Laila Haswell, senior assistant public defender, for
    the appellant (defendant).
    Rita M. Shair, senior assistant state’s attorney, with
    whom were Richard Colangelo, state’s attorney, and,
    on the brief, Paul J. Ferencek, senior assistant state’s
    attorney, for the appellee (state).
    Opinion
    LAVERY, J. The defendant, Marcellus Catchings,
    appeals from the judgment of conviction, rendered after
    a jury trial, of attempt to commit assault in the first
    degree in violation of General Statutes §§ 53a-49 (a) (2)
    and 53a-59 (a) (1).1 On appeal, the defendant claims
    that there was insufficient evidence to establish beyond
    a reasonable doubt his intent to inflict serious physical
    injury on another person, as required for a conviction
    of attempt to commit assault in the first degree. We
    affirm the judgment of the trial court.
    The jury reasonably could have found the following
    facts. In the early morning hours of March 18, 2011,
    Patricia Beverly was pulling into the driveway of a pool
    hall in Stamford when her vehicle was struck by another
    vehicle. Beverly exited her car to confront the other
    driver, but the other driver drove off. The defendant,
    who was friends with the driver whose vehicle had
    struck Beverly’s vehicle, pulled into the pool hall a
    couple of minutes later. The defendant was heavily
    intoxicated,2 and was illegally in possession of a loaded
    nine millimeter semiautomatic pistol without a permit.
    Prior to getting out of his car, the defendant cocked
    his gun, not noticing that there was already a cartridge
    in the chamber, which caused the gun to jam and
    become temporarily inoperable.3 At some point after
    exiting his car, the defendant began ‘‘waving’’ his gun
    around and then aimed the gun at Beverly. Beverly
    retreated around the corner of the building and called
    911. After learning that someone had called the police,
    the defendant put his gun back into his waistband and
    called a friend to obtain a ride before the police arrived.
    Officer William Garay of the Stamford Police Depart-
    ment responded to the scene and spotted the defendant
    walking down a nearby street while talking on his cell
    phone. Recognizing that the defendant fit the descrip-
    tion of the person who reportedly was waving a gun,
    Garay exited his marked police cruiser near where the
    defendant was walking, shined a spotlight on the defen-
    dant, and instructed the defendant to show his hands.
    The defendant recognized Garay as a police officer but,
    because he was carrying an illegal firearm, ignored Gar-
    ay’s commands and continued walking. Garay drew his
    gun, aimed it at the defendant, and ordered him to stop
    and show his hands. The defendant again ignored Garay
    and kept walking. Garay began advancing toward the
    defendant with his gun drawn and shouted for the defen-
    dant to get on the ground. The defendant then broke
    into a run, and Garay chased after him.
    At some point during the chase, Officer Luis Vidal of
    the Stamford Police Department arrived on the scene
    and attempted to block the defendant’s path of escape
    by driving his cruiser onto the sidewalk at an angle in
    front of where the defendant was running. Garay, who
    was positioned behind and to the left of the defendant,
    could not see the defendant’s right hand as he ran,
    which was ‘‘somewhere in his stomach and waistband
    . . . area.’’ Just as Vidal stopped and exited his cruiser,
    the defendant, while still running, suddenly removed
    his gun from his waistband, ‘‘turned toward his right’’
    with the gun in his right hand, and pointed the gun
    directly at Garay’s midsection. Garay, who was about
    fifteen feet away, thought that the defendant was going
    to shoot him, and fired a shot at the defendant that
    missed. As Garay fired the shot, the defendant ‘‘[a]lmost
    simultaneously’’ ‘‘dropped’’ his gun to the ground.
    Garay dropped his gun and tackled the defendant to
    the ground. A violent struggle ensued. The defendant
    pushed Garay off him and struggled to get away, ignored
    Garay’s repeated demands to stop resisting, and evaded
    Garay’s attempts to handcuff him by lying on his stom-
    ach and clenching his hands beneath his chest. Vidal
    ‘‘jumped on’’ the defendant to help Garay restrain him.
    Officer Faruk Yilmaz of the Stamford Police Depart-
    ment arrived moments later and noticed the defendant’s
    handgun, which was in a jammed and temporarily inop-
    erable condition,4 lying about a foot away from where
    the struggle was taking place. Yilmaz removed it from
    the area before assisting with the defendant. Eventually,
    the three officers subdued and arrested the defendant.5
    The defendant was subsequently charged with multi-
    ple offenses, including attempt to commit assault in the
    first degree. See footnote 1 of this opinion. On March
    14, 2013, the jury found the defendant guilty on all
    counts. The trial court thereafter rendered judgment
    in accordance with the verdict, and imposed a total
    effective sentence of fifteen years imprisonment and
    five years of special parole. This appeal followed.
    The defendant claims that there was insufficient evi-
    dence to convict him of attempt to commit assault in
    the first degree because no reasonable jury could have
    concluded beyond a reasonable doubt that he intended
    to inflict serious physical injury on Garay. In support
    of this claim, the defendant argues that ‘‘[t]he simple act
    of pointing a gun, without any accompanying assertive
    behavior that could permit an inference of specific
    intent to seriously injure [Garay] by shooting him, is
    too equivocal an act to prove intent.’’ In response, the
    state contends that it introduced additional evidence,
    beyond the defendant’s mere act of pointing the gun at
    Garay, to establish the defendant’s intent, including the
    defendant’s conduct prior to the encounter with Garay
    and the fact that the defendant raised his gun at Garay
    while attempting to resist arrest. We agree with the
    state.6
    ‘‘In reviewing the sufficiency of the evidence to sup-
    port a criminal conviction we apply a two-part test.
    First, we construe the evidence in the light most favor-
    able to sustaining the verdict. Second, we determine
    whether upon the facts so construed and the inferences
    reasonably drawn therefrom the [finder of fact] reason-
    ably could have concluded that the cumulative force
    of the evidence established guilt beyond a reasonable
    doubt. . . . In evaluating evidence, the trier of fact is
    not required to accept as dispositive those inferences
    that are consistent with the defendant’s innocence. . . .
    The trier may draw whatever inferences from the evi-
    dence or facts established by the evidence it deems to
    be reasonable and logical. . . . This does not require
    that each subordinate conclusion established by or
    inferred from the evidence, or even from other infer-
    ences, be proved beyond a reasonable doubt . . .
    because this court has held that a jury’s factual infer-
    ences that support a guilty verdict need only be reason-
    able. . . .
    ‘‘[A]s we have often noted, proof beyond a reasonable
    doubt does not mean proof beyond all possible doubt
    . . . nor does proof beyond a reasonable doubt require
    acceptance of every hypothesis of innocence posed by
    the defendant that, had it been found credible by the
    trier, would have resulted in an acquittal. . . . On
    appeal, we do not ask whether there is a reasonable
    view of the evidence that would support a reasonable
    hypothesis of innocence. We ask, instead, whether there
    is a reasonable view of the evidence that supports the
    jury’s verdict of guilty.’’ (Citation omitted; internal quo-
    tation marks omitted.) State v. Hedge, 
    297 Conn. 621
    ,
    656–57, 
    1 A.3d 1051
    (2010).
    Turning to the relevant statutory provisions, § 53a-
    49 (a) provides in relevant part that ‘‘[a] person is guilty
    of an attempt to commit a crime if, acting with the kind
    of mental state required for commission of the crime,
    he . . . (2) intentionally does . . . anything which,
    under the circumstances as he believes them to be, is
    an act or omission constituting a substantial step in a
    course of conduct planned to culminate in his commis-
    sion of the crime.’’ Section 53a-59 (a) provides in rele-
    vant part that ‘‘[a] person is guilty of assault in the first
    degree when: (1) With intent to cause serious physical
    injury to another person, he causes such injury to such
    person or to a third person by means of a deadly
    weapon . . . .’’
    Thus, ‘‘[i]n order to sustain a conviction for attempt
    to commit assault in the first degree, the state must
    have presented evidence from which the jury reason-
    ably could have found beyond a reasonable doubt that
    the defendant did something constituting a substantial
    step in a course of conduct planned to culminate in his
    commission of the crime . . . namely, assault with the
    intent to cause serious physical injury to another person
    . . . . Regarding the substantial step requirement, we
    have held that [a] substantial step must be something
    more than mere preparation, yet may be less than the
    last act necessary before the actual commission of the
    substantive crime . . . . In order for behavior to be
    punishable as an attempt, it need not be incompatible
    with innocence, yet it must be necessary to the consum-
    mation of the crime and be of such a nature that a
    reasonable observer, viewing it in context could con-
    clude beyond a reasonable doubt that it was undertaken
    in accordance with a design to violate the statute. . . .
    ‘‘Regarding the intent requirement, an individual acts
    intentionally with respect to a result or to conduct . . .
    when his conscious objective is to cause such result
    or to engage in such conduct . . . . Intent may be,
    and usually is, inferred from [a] defendant’s verbal or
    physical conduct [as well as] the surrounding circum-
    stances. . . . Nonetheless, [t]here is no distinction
    between circumstantial and direct evidence so far as
    probative force is concerned. . . . Moreover, [i]t is not
    one fact, but the cumulative impact of a multitude of
    facts which establishes guilt in a case involving substan-
    tial circumstantial evidence. . . . Finally, we under-
    score that intent [can] be formed instantaneously and
    [does] not require any specific period of time for
    thought or premeditation for its formation. . . . Intent
    is a question of fact, the determination of which should
    stand unless the conclusion drawn by the trier is an
    unreasonable one.’’ (Citations omitted; internal quota-
    tion marks omitted.) State v. Carter, 
    317 Conn. 845
    ,
    856–57, 
    120 A.3d 1229
    (2015).
    Our resolution of the defendant’s sufficiency of the
    evidence claim must begin with a review of Carter, in
    which our Supreme Court rejected a sufficiency claim
    premised on the argument that the mere act of pointing
    a gun at someone is insufficient to establish intent.
    
    Id., 857. In
    Carter, several uniformed police officers
    approached the defendant in a bar after learning that
    he had threatened to ‘‘ ‘pop this white dude.’ ’’ 
    Id., 848. The
    defendant turned, removed a handgun from his
    pocket, and pointed it at one of the officers’ midsection.
    
    Id., 849. The
    officer and the defendant pointed their
    guns at each other for a few seconds, with neither
    attempting to shoot, until the defendant lowered his
    gun and turned the other way. 
    Id., 850. The
    defendant
    began struggling with the officers who attempted to
    handcuff him before eventually surrendering at gun-
    point. 
    Id. The defendant
    was convicted of, inter alia, attempt
    to commit assault in the first degree and claimed, on
    appeal, that there was insufficient evidence to establish
    his intent to inflict serious physical injury on the officer
    at whom he pointed his gun. 
    Id., 851–52. In
    rejecting
    that claim, our Supreme Court relied on the fact that
    the defendant aimed specifically at the officer’s midsec-
    tion, an area of her body particularly susceptible to
    substantial physical injury; 
    id., 858; that
    the defendant
    placed his finger on the trigger guard, ‘‘one of the last
    steps that an individual must take before firing a gun’’;
    id.; that the defendant, after aiming the gun, ‘‘positioned
    himself in a shooting stance’’ and ‘‘maintained that posi-
    tion for approximately five seconds despite repeated
    orders to drop the gun’’; id.; and that the officer was
    ‘‘so sure the defendant was going to shoot her’’ that
    she began to remove the safety mechanism on her own
    gun. 
    Id. The court
    also noted that, after the officers
    closed in on the defendant, ‘‘he attempted to maintain
    possession of his gun rather than acquiesce,’’ and that
    ‘‘it would not have been unreasonable [given his earlier
    actions] for the jury to infer that he was attempting to
    maintain possession of the gun to use it.’’ 
    Id. Finally, the
    court observed that, approximately one hour before
    the standoff, the defendant ‘‘had expressed an intention
    and willingness to use the gun by threatening to shoot
    a particular ‘white dude.’ ’’ 
    Id., 859. In
    addition to the factors bearing on the court’s deci-
    sion in Carter, this court recognized in State v.
    Osbourne, 
    138 Conn. App. 518
    , 530–31, 
    53 A.3d 284
    ,
    cert. denied, 
    307 Conn. 937
    , 
    56 A.3d 716
    (2012), that a
    sudden movement to procure a loaded firearm, when
    made in the course of an attempt to arrest, is especially
    indicative of an intent to use the firearm to shoot and
    cause serious physical injury to the pursuing officer.
    The defendant in Osbourne, after attempting to flee
    from police officers who approached him on the street,
    began violently resisting the officers’ attempts to physi-
    cally subdue him, prompting one of the officers to utilize
    his Taser gun. 
    Id., 522–23. After
    the second tasing cycle,
    the defendant quickly reached into his pocket and par-
    tially removed a loaded handgun, at which point the
    officers immediately intervened, removed the gun from
    the defendant’s possession, and handcuffed him. 
    Id., 523. Rejecting
    the defendant’s claim on appeal that
    there was insufficient evidence of his intent, this court
    concluded that ‘‘[t]he defendant’s act of reaching
    quickly into his pocket and grabbing a cocked and
    loaded gun while struggling with uniformed police offi-
    cers who were attempting physically and by verbal com-
    mand to subdue him reasonably could have been found
    not only to have been the start of a line of conduct
    leading naturally to securing the gun and using it to
    shoot and cause serious physical injury to each of the
    three officers, but also to have been strongly corrobora-
    tive of his alleged purpose to engage in such conduct
    and cause such results, and thus to commit assault in
    the first degree against each officer.’’ 
    Id., 530–31. In
    the present case, on the basis of the evidence
    adduced at trial, the jury reasonably could have con-
    cluded that the defendant intended to shoot and cause
    serious physical injury to Garay. Leading up to the
    encounter, the defendant, who knew that the police
    were searching for him because he had brandished his
    gun at Beverly, recognized Garay to be a police officer.
    In order to avoid being arrested and prosecuted for
    carrying a firearm without a permit, the defendant
    ignored Garay’s orders to show his hands. When Garay
    raised his gun and ordered the defendant to get on
    the ground, the defendant ran. After a brief chase, the
    defendant, while running full speed, abruptly removed
    his gun from his waistband, turned his body partially
    around toward Garay, and pointed his gun directly at
    Garay’s midsection from fifteen feet away. Therefore,
    contrary to the defendant’s contention, the evidence at
    trial demonstrated not only that the defendant pointed
    his gun at Garay, but that he did so in an abrupt and
    purposeful manner while engaged in a prolonged effort
    to resist being arrested and charged with unlawful pos-
    session of a firearm. Viewing the defendant’s actions
    in context with these surrounding circumstances, the
    jury reasonably could have inferred that the defendant,
    in order to effectuate his escape, pointed his gun at
    Garay with the intent to shoot him in the midsection,
    ‘‘an area of [his] body that would be likely to inflict
    physical injury which creates a substantial risk of death
    . . . .’’ (Internal quotation marks omitted.) State v. Car-
    
    ter, supra
    , 
    317 Conn. 858
    ; see Godsey v. State, 
    719 S.W.2d 578
    , 583 (Tex. Crim. App. 1986) (finding suffi-
    cient evidence of intent to kill where defendant deliber-
    ately removed handgun from waistband after seeing
    police officers, ignored orders to drop gun, and then
    pointed gun directly at officers).7
    Furthermore, Garay testified that when the defendant
    turned and pointed the gun at him, he fired a shot at
    the defendant because he thought the defendant was
    going to shoot him. As Garay fired, the defendant
    ‘‘[a]lmost simultaneously’’ ‘‘dropped’’ his gun to the
    ground. The defendant was tackled by Garay immedi-
    ately thereafter, and although he continued to resist,
    he was ultimately handcuffed and subdued by the three
    officers. The jury reasonably could have inferred from
    this evidence that the defendant turned and pointed his
    gun at Garay with the intent to shoot him, but was
    interrupted from taking a further step toward that
    desired result by Garay, who forced the defendant to
    drop his weapon by firing at him. See State v. Pinnock,
    
    220 Conn. 765
    , 775, 
    601 A.2d 521
    (1992) (‘‘[t]he attempt
    is complete and punishable, when an act is done with
    intent to commit the crime . . . whether the purpose
    fails by reason of interruption or for other extrinsic
    cause’’ [internal quotation marks omitted]). Even if,
    however, the defendant relinquished his intention to
    shoot Garay when he dropped the gun, ‘‘that change
    would not negate his earlier intention, and the brevity
    of that intent is irrelevant.’’ State v. Car
    ter, supra
    , 
    317 Conn. 858
    .
    The defendant’s conduct prior to the encounter with
    Garay further supports the jury’s finding that the defen-
    dant harbored the requisite intent to shoot and cause
    serious physical injury to Garay. See State v. Commer-
    ford, 
    30 Conn. App. 26
    , 34, 
    618 A.2d 574
    (intent to
    commit assault can be inferred from ‘‘events leading
    up to and immediately following the incident’’ [internal
    quotation marks omitted]), cert. denied, 
    225 Conn. 903
    ,
    
    621 A.2d 285
    (1993). The defendant admitted at trial
    that, prior to his confrontation with Beverly, he cocked
    his gun in order to load a cartridge into the chamber
    despite the fact that the gun was already loaded. The
    jury reasonably could have inferred from this evidence
    that the defendant wanted to ensure that the gun was
    ready to fire, and therefore that he possessed a willing-
    ness, if not a specific intention, to fire the gun. Although
    the defendant presumably did not engage in this prepa-
    ratory act in anticipation of an encounter with police,
    it is nevertheless probative of his state of mind. See
    State v. Car
    ter, supra
    , 
    317 Conn. 859
    (relying in part
    on fact that ‘‘one hour before the defendant’s standoff
    with [the officer], the defendant had expressed an inten-
    tion and willingness to use the gun by threatening to
    shoot a particular ‘[dude],’ ’’ despite fact that threat was
    not directed at officer). We conclude that the evidence
    of this prior conduct, coupled with the circumstances
    surrounding the defendant’s encounter with Garay, pro-
    vided sufficient evidence to support a reasonable jury’s
    finding of intent to inflict serious physical injury beyond
    a reasonable doubt.
    The defendant nevertheless argues that the evidence
    was insufficient to support the jury’s finding of intent.
    Neither of his two primary arguments in this regard are
    availing. First, he argues that there is no evidence that
    he placed his finger on the trigger8 or fired the gun
    after pointing it at Garay. The absence of those facts,
    however, does not preclude the jury’s finding of intent
    to inflict serious physical injury. ‘‘Although the actual
    firing of a gun provides strong evidence of intent, the
    absence of such evidence does not automatically render
    the evidence insufficient . . . . As we have previously
    noted, [i]t is not one fact, but the cumulative impact of
    a multitude of facts which establishes guilt . . . .’’
    (Internal quotation marks omitted.) 
    Id., 860; see
    also
    State v. 
    Osbourne, supra
    , 
    138 Conn. App. 531
    (affirming
    jury’s finding of intent on basis of evidence that defen-
    dant partially removed gun from pocket). Those princi-
    ples apply with particular force in the present case
    because, as previously explained, the jury reasonably
    could have concluded that ‘‘it was only the show of
    overwhelming force [by police] that persuaded the
    defendant to relinquish [his] intent.’’ State v. Car
    ter, supra
    , 
    317 Conn. 859
    .
    In any case, whether or not the defendant discharged
    the gun or placed his finger on the trigger misses the
    point. To be guilty of criminal attempt, the defendant
    need only take a ‘‘substantial step’’ in a course of con-
    duct planned to culminate in the commission of the
    crime; see General Statutes § 53a-49 (a) (2); and, in
    determining whether the defendant took the necessary
    substantial step, the focus is ‘‘on what the [defendant]
    has already done and not what remains to be done.’’
    (Internal quotation marks omitted.) State v. Daniel B.,
    
    164 Conn. App. 318
    , 331, 
    137 A.3d 837
    , cert. granted,
    
    323 Conn. 910
    ,       A.3d       (2016). Because the jury
    reasonably could have found that the defendant
    engaged in the substantial step of pointing his gun at
    Garay; see State v. Cox, 
    293 Conn. 234
    , 246 n.9, 
    977 A.2d 614
    (2009); and that he did so with the intent to
    inflict serious physical injury, he is guilty of attempt to
    commit assault in the first degree regardless of whether
    he subsequently placed his finger on the trigger or fired
    the gun.9 See State v. Car
    ter, supra
    , 
    317 Conn. 861
    (‘‘defendant’s claim that he did not rack the gun, even
    if true, would only support the proposition that he did
    not take the next step to complete the crime, which,
    of course, is irrelevant to the inquiry whether he took
    a prior substantial step to commit the offense’’ [empha-
    sis in original]).
    Second, the defendant argues that he could not have
    formed the intent to inflict serious physical injury
    because, at the time of his confrontation with Garay,
    his gun was jammed and thus would not have fired
    even if he had pulled the trigger. We disagree. The
    attempt statute merely requires the state to prove that
    the defendant took a substantial step ‘‘under the circum-
    stances as he believe[d] them to be . . . .’’ General
    Statutes § 53a-49 (a) (2). That statutory language
    ‘‘sweeps aside any consideration of the defense of
    impossibility, including the distinction between so-
    called factual and legal impossibility. Under [§ 53a-49
    (a) (2)], the liability of the actor turns on his purpose,
    considered in the light of his beliefs, and not on what
    is actually possible under existing circumstances. If the
    actor attempted to pick an empty pocket of another
    person mistakenly thinking it contained money, he
    would be guilty of attempted larceny.’’ D. Borden &
    L. Orland, 10 Connecticut Practice Series: Connecticut
    Criminal Law (2d Ed. 2007) p. 115. In view of that
    principle, the existence of the jam in the present case
    does not bear on the jury’s determination that the defen-
    dant was guilty of attempt to commit assault in the first
    degree if the defendant believed the gun to be operable
    and ready to fire when he pointed it at Garay. See State
    v. Car
    ter, supra
    , 
    317 Conn. 861
    (fact that gun was not
    racked and thus incapable of firing did not negate intent
    element because ‘‘it [was] . . . entirely reasonable for
    [the jury] to infer that the defendant did not know that
    it was necessary to rack the gun’’ in order to fire it).
    Our review of the record discloses ample evidence
    from which the jury reasonably could have concluded
    that the defendant was unaware that his gun was inoper-
    able when he raised it at Garay. First, the state pre-
    sented evidence that the defendant was intoxicated
    around the time of the events in question; see footnote
    2 of this opinion; from which the jury reasonably could
    have inferred that the defendant failed to notice that
    he had caused the gun to jam by cocking it when there
    was already a cartridge in the chamber. Although the
    defendant argues that the jam was readily apparent
    because it caused the barrel of the gun to protrude
    outward, it was not unreasonable for the jury to have
    concluded that, given his intoxication, the defendant
    failed to notice the jam. Moreover, the defendant did
    not mention the jam in the sworn, written statement
    that he provided to the police the day after his arrest.10
    In the statement, the defendant claimed, untruthfully,
    that prior to confronting Beverly he ‘‘made sure that
    [his gun] was on safety and that there [were] no bullets
    in the chamber.’’ The defendant further claimed that
    while running from the scene he attempted to throw
    his gun over an adjacent fence and, contrary to his
    testimony at trial, that he did not realize that a police
    officer was chasing him. Despite the defendant’s appar-
    ent willingness to downplay certain facts to the police
    in order to portray himself in a more favorable light,
    he did not mention the fact that the gun was jammed
    or make any suggestion that he believed that the gun
    was inoperable. On the basis of this evidence, it was
    entirely reasonable for the jury to have discounted the
    defendant’s testimony at trial that he was aware of the
    jam prior to his encounter with Garay. See State v.
    Gary, 
    273 Conn. 393
    , 406, 
    869 A.2d 1236
    (2005) (‘‘[T]he
    [finder] of fact is not required to accept as dispositive
    those inferences that are consistent with the defen-
    dant’s innocence . . . . [P]roof beyond a reasonable
    doubt [does not] require acceptance of every hypothesis
    of innocence posed by the defendant . . . .’’ [Internal
    quotation marks omitted.]). The jury reasonably could
    have determined that the defendant was unaware of
    the jam, and therefore believed the gun to be fully opera-
    ble and ready to fire when he pointed it at Garay.
    Accordingly, the existence of the jam does not negate
    the jury’s finding of intent to inflict serious physical
    injury.
    The judgment is affirmed.
    In this opinion the other judges concurred.
    * The listing of judges reflects their seniority status on this court as of
    the date of oral argument.
    1
    The defendant also was convicted of assault of a peace officer in violation
    of General Statutes § 53a-167c (a) (1), and carrying a pistol or revolver
    without a permit in violation of General Statutes § 29-35 (a). Those convic-
    tions are not at issue in this appeal.
    2
    Sometime later, after the defendant was arrested, he submitted to a
    blood test that determined his blood alcohol content to be 0.272, a ‘‘high’’
    alcohol content, albeit ‘‘not lethally so.’’ At trial, the defendant, who testified
    in his own defense, admitted that he drank a pint of Hennessy about thirty
    minutes prior to the events in question.
    3
    By cocking the gun while there was already a cartridge in the chamber,
    the defendant forced a second cartridge into the chamber which caused
    the jam. Although the gun could not be fired in that condition, the defendant
    could have fixed the jam in a matter of seconds simply by pulling back on
    the slide and releasing the two cartridges from the chamber.
    4
    The state conceded at trial that when the defendant pointed the gun at
    Garay, the gun ‘‘was jammed’’ and ‘‘was not going to fire.’’
    5
    The defendant, Garay, and Vidal all sustained injuries in the struggle.
    Immediately after the incident, the defendant was taken to Stamford Hospital
    for treatment where he presented with abrasions on his hand, swollen lips,
    and a laceration in his mouth. Garay sprained his left shoulder and sustained
    bruises and cuts on his right hand. Vidal sustained a contusion to his
    right hand.
    6
    It remains an open question in Connecticut ‘‘whether the mere act of
    pointing a gun at someone is sufficient to establish intent to inflict serious
    physical injury beyond a reasonable doubt . . . .’’ State v. Carter, 
    317 Conn. 845
    , 857, 
    120 A.3d 1229
    (2015). Because, contrary to the defendant’s argu-
    ment, this case does not merely involve the isolated act of pointing a gun
    at someone, we need not resolve that issue in the present case.
    7
    In Godsey v. 
    State, supra
    , 
    719 S.W.2d 578
    , a decision our Supreme Court
    has cited with approval; see State v. Car
    ter, supra
    , 
    317 Conn. 860
    ; the
    defendant, after seeing multiple uniformed officers with their guns pointed
    at him, deliberately removed a loaded handgun from his waistband, ignored
    the officers’ commands to drop the gun and put his hands on his head, and
    pointed the gun at the officers as if he were aiming. Godsey v. 
    State, supra
    ,
    583. In finding that there was sufficient evidence of the defendant’s intent
    to kill, the court observed that ‘‘[w]e are not holding that the pointing of
    the loaded gun, in and of itself, is sufficient. Rather, the context of the
    offense, the way in which the pointing came about [and] the facts and
    circumstances of the offense, prove the intent.’’ 
    Id. The court
    noted the
    specific manner in which the defendant exhibited the gun, explaining that
    the defendant ‘‘was not merely waving the gun around,’’ but ‘‘deliberately
    pulled it out . . . after seeing the armed officers with their guns pointed
    at him’’ and proceeded to ‘‘point the gun in such a way that it was almost
    as if he were ‘drawing a bead’ on [two of the officers].’’ 
    Id. Finally, the
    court relied on the evidence of the defendant’s ‘‘suicide wishes,’’ which, it
    reasoned, supported the inference that the defendant ‘‘could have decided
    to shoot the officers so that they would then shoot him.’’ 
    Id. 8 After
    the defendant’s arrest, police examined his gun and discovered
    his fingerprints on the magazine and his DNA on the slide. Trace evidence
    on the trigger, however, was insufficient for a DNA comparison.
    9
    The defendant relies on State v. Dunn, 
    26 Conn. App. 114
    , 124, 
    598 A.2d 658
    (1991), in which this court stated that ‘‘it would have been permissible
    to infer that the defendant did not intend to cause serious injury to [the
    victim] from the fact that he did not shoot [the victim] despite the opportunity
    and means to do so . . . .’’ (Emphasis added.) 
    Id., 124. That
    observation,
    however, was made in the context of whether there was evidence of the
    defendant’s intent to inflict an injury that was serious in nature, and is
    therefore inapposite in the present case, which concerns the distinct issue
    of whether there was evidence of the defendant’s intent to shoot Garay. See
    State v. Car
    ter, supra
    , 
    317 Conn. 861
    –62 (distinguishing Dunn). Moreover,
    although it may in theory be permissible for a jury to infer a lack of intent
    where the defendant does not fire the gun, the jury was not required to
    draw that inference under the circumstances of the present case. To suggest
    otherwise misunderstands our standard of review for sufficiency of the
    evidence claims. See State v. 
    Hedge, supra
    , 
    297 Conn. 657
    (‘‘On appeal, we
    do not ask whether there is a reasonable view of the evidence that would
    support a reasonable hypothesis of innocence. We ask, instead, whether
    there is a reasonable view of the evidence that supports the jury’s verdict
    of guilty.’’ [Internal quotation marks omitted.]).
    10
    The entirety of the defendant’s statement, which he provided to multiple
    officers of the Stamford Police Department after executing a written waiver
    of his rights, reads as follows: ‘‘My name is Marcellus D. Catchings and I’m
    24 years old. My date of birth is 8/6/86. I live at 47 Hastings St, Bridgeport,
    CT and I have lived there for about five to six months. I’m currently unem-
    ployed. I give this voluntary sworn statement to Officer A. Gonzalez and
    Officer Rodriguez.
    ‘‘On Thursday, March 17, 2011 at about 7:30 PM I was at a basketball game
    at AIT, (High Ridge Road), and after the game I went to my grandmother’s,
    (Jeanette Catchings), house at 46 Durant Street. I left my grandmothers
    house with Tamika Collighan who picked me up in her car and we went to
    [Banks] Pool Hall in the south end. We got there around eleven something.
    ‘‘In the parking lot of [Banks] someone gave me a drink of Vodka with
    juice. I then got a pint of Hennessey from [Banks] and went outside and
    started talking with everyone. There was about nine or more people outside.
    It took me about 20-30 minutes to finish the Hennessy. I saw some girls
    who came there and started fighting with a girl that I was talking with,
    (Danielle), and I was supposed to leave with on that night.
    ‘‘I pulled a gun out from my waist and I made sure that it was on safety
    and that there was no bullets in the chamber. I was telling everyone to stop
    fighting. The gun I had I was pointing it towards the sky. It was a 9MM.
    People started running and I guess someone had called the cops. I [saw]
    one cop car coming so I ran.
    ‘‘While I was running I saw a cop car in front of me and I threw the gun
    which I had [in] my hand. I tried to throw it over the fence but I heard it
    hit the fence and fall on the ground. I ended up on the ground and then the
    cops started kicking me and all I remember is being in the car after that.
    ‘‘I didn’t point the gun at a cop because I didn’t know there was a cop
    on foot running behind me. I thought that he was still in the car. The whole
    day the gun was on safety and there were no bullets in the chamber. On
    this date I only had those drinks I didn’t do any drugs.’’
    

Document Info

Docket Number: AC36006

Judges: Beach, Sheldon, Lavery

Filed Date: 2/7/2017

Precedential Status: Precedential

Modified Date: 10/19/2024